Free Response to Motion [Dispositive] - District Court of Federal Claims - federal

Case 1:07-cv-00725-MMS

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Exhibit F

Excerpt from United States' Brief in Tunica-Biloxi Tribe of Louisiana v. United States, No. 1:02cv02413 (D.D.C.) (Dec. 21,2006)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
) ) ) ) ) Case No.1 :02CV02413 ) Judge Reggie B. Walton ) Magistrate Judge Deborah A. Robinson ) ) ) ) ) ) ) ) )

TUNICA-BILOXI TRIBE OF LOUISIANA; RAMAH NAVAJO SCHOOL BOARD, INC., Plaintiffs,

v.
UNITED STATES of AMERICA; MICHAEL O. LEAVITT, Secretary of the United States Department of Health and Human Services; DIRK KEMPTHORNE, Secretary of the United States Department of the Interior, Defendants.

DEFENDANTS' MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT
Pursuant to Rule 12(b)(1), 12(b)(6), and 56 of the Federal Rules of Civil Procedure, Defendants United States, Michael O. Leavitt, Secretary of the U.S. Department of Health and Human Services, and Dirk Kempthorne, Secretary of the U.S. Department of the Interior, by and through undersigned counsel, hereby move this Court for an order dismissing the Second Amended Complaint and the Supplemental Complaint for lack ofsubject matter jurisdiction and failure to state a claim or, in the alternative, for an order granting summary judgment to them on all claims. The facts and law supporting this Motion are set forth in the accompanying Memorandum ofPoints and Authorities in Support of Defendant's Motion to Dismiss or, in the Alternative, for Summary Judgment and a separately filed Local Rule 7. 1(h) Statement of Material Facts.

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B.

The ISDA Allows IHS to Use Indirect Cost Rates, Negotiated under OMB A87, in Making Indirect esc Funding Awards.

The ISDA does not prohibit IRS from using indirect cost rates negotiated under OMB A87. To the contrary, the text of the ISDA demonstrates two things: that Congress intends IRS to use indirect cost rates, negotiated under OMB A-87, to make indirect CSC funding awards and that Congress prohibits IRS (and BIA) from paying the indirect costs of other federal agencies. This intention was made clear from the very first time Congress addressed indirect costs directly in the ISDA. See Indian Self-Determination & Educ. Assistance Act Amendments of 1988, Pub.

L. No. 100-472, 102 Stat. 2285, §§ 103,205 (1988). Significantly, Congress defmed "indirect
costs" for purposes of the ISDA in the same manner as indirect costs were defined under the preexisting OMB Circulars. See id. § 103(f) (codified at 25 U.S.C. § 450b(f); 35 Fed. Reg. 18797, 18799 (1970). By incorporation of the government-wide OMB A-87 definition, the plain language of the 1988 amendments demonstrates that Congress fully expected IRS to continue to use OMB A-87 indirect cost rates as the starting point for calculating indirect costs. Other parts of the 1988 amendments demonstrate Congress's intent to allow IRS to award indirect costs on the basis of indirect cost rates negotiated under OMB A-87. Congress defined the term "indirect cost rate" in the 1988 amendments as "the rate arrived at through negotiation between an Indian tribe or tribal organization and the appropriate Federal agency[.]" Id. § 103(g) (codified as 25 U.S.c. § 450b(g». Congress also added a requirement that IRS report to it on shortfalls in the funding ofCSC. See id. § 205(c) (codified as 25 U.S.C. § 450j-l(c». This report was to identify "the indirect cost rate and the type of rate for each tribal organization." Id. By these references, Congress evinced its knowledge and approval of the government-wide indirect cost rate system.

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Exhibit G

IRS Brief in Fort Mojave Indian Tribe v. Leavitt, CBCA 547-ISDA (Civ. Bd. of Contract Appeals) (April 1, 2008)

-~·¥i·¥i'ij4"i;

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Michael Shachat Assistant Regional Counsel Lana Choi Assistant Regional Counsel Office of the General Counsel U.S. Department of Health and Human Services Region IX 90 71h Street, Suite 4·500 San Francisco, California 94103·6705 Telephone: (415) 437-8184 Facsimile: (415) 437 8188 Attomey for the Indian Health Service
p

CIVILIAN BOARD OF CONTRACT APPEALS GENERAL SERVICES ADMINISTRATION 1800 F Street, NW Washington, DC 20405

Fort Mojave Indian Tribe,

Appellant,

) ) ) )

vs.
Michael O. Leavitt, Secretary, U.S. Department ofHealth and Human Services; Robert G. MoSwain, Acting Director, Indian Health Service; United States of America, Appellees.

)
)

Judge Eileen P. Fennessy CBCA 547-ISDA
(IBeA 4879·2007

) ) ,) )
)

through IBCA 4882-2007)

)
)

APPELLEES' RESPONSE TO APPELLANT'S NOTICE OF ADDITIONAL AUTHOlUTY
Appellees hereby respond to Appellant' ' Fort Mojave Indian Tdbe's "Notice of Additional AUthOlity," which purports to give notice of "recent additional authority bearing 011 the issues presented in the dispositive motions currently pending before the Board." Appellant has cited Menominee Indian Tribev. United States, No. 07-812,2008 WL 680379 (D.D.C. Mar. 14, 2006), a case which is not relevant to the issues presented in the

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motions currently pending before this Board. Like CheroJ<:ee Notiol1 v. Leavitt, 543 U.S. 631
(2005) and Ramah Navajo School Board, Inc. v. Babbitt, 8TF,3d 1338 (D.C. Cir. 1996), which have already been cited by Appellant in its briefs, the Menominee case COl1cems a claim for contract support costs ("eSC") under an ISDEAA contract. In contrast, the appeal before this Board concerns Appellant's claims for the "Section I06(a)(I)" or "Secretarial" amount W1der such contract (Appellant's damages claims for esc are merely incidental to its primary claim for Section 106(a)(1) funding), thus Appellant's reliance on a line of esc cases is wholly inapposite to this appeal. The CSC at issue in Cherokee, Ramah, and Menominee were indirect esc, which

are calculated by applying a pre-determined "indirect cost rate" to the amount of funds otherwise payable to a tribe (in the appeal before this Board, the Tribe has calculated the alleged indirect

esc due as a fixed percentage of its alleged Section I06(a)(1) amount).
F.3d at 1441.

See. e.g., Rllmah, 87

Accordingly, such esc are fixed according to this fonnula al1d must be paid

pursuant to the ISDEAA, even if a tribe and IRS has somehow negotiated a lower amount and included that amoWlt in the terms ofthe contract. See 25 U.S.C. § 450j-l(g) ("The Secretary shall add to the contract the full amount of funds to which the'contractor is entitled under subsection (a) (providing esc funding]"- thus the amount of indirect ese is not subject to negotiation once the Section l06(a)(1) amoWlt is negotia.ted). Contrary to indirect esc, however, a tribe's Section l06(a)(1} amount is not calculated pursuant to a fixed formula, as Ute Section 106(a)(l) amount is a negotiated amount that "shall not be less than the appropriate Secretary would have otherwise provided for the operation of the programs or portions thereof for the period covered by the contract." 25 U.S ,e. § 450j-l(a)(1). As set forth in detail in Appellees' Briefs, this is precisely the Section l06(a)(1) amount that was set forth in and paid
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pursuant to the terms of the Tribe's contracts with illS.

Dated: April

1, 2008

Respectfully submitted)

IC ael Shachat ssistant Regional Counsel LanaChoi Assistant Regional Counsel Office of the General Counsel U.S. Department of Health and Human Services 90 71h Street, Suite 4~500 San Francisco, CA 94103-6705 (415) 437-8184 (415) 437 8188 (fax)
A

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